Battle over water rights gets reprieve

AUSTIN — A fight between water planning groups was settled on Thursday with a 3-0 vote by the Texas Water Development Board which will ensure that the Marvin Nichols Reservoir will remain a part of the Dallas-Fort Worth region’s long-term water resources.

Region D, which includes rural northeast Texas counties, including a part of Smith County, was challenging Region C (Dallas, Fort Worth and some suburbs) for rights to Marvin Nichols.

The 75,000-acre, $3.4 billion (latest cost estimate) reservoir has been a part of the state’s water plan since 1968.

It’s just one example of how muddy property rights regarding ground and surface water in Texas are. And those rights aren’t expected to be any clearer by the end of the 84th Legislative Session, according to panelists of a Texas Public Policy Foundation discussion on the topic.

Panelists Molly Cagle, an environmental attorney for Baker Botts law firm, Bob Harden, a groundwater specialist and Colorado attorney and Pres. George W. Bush’s top water advisor Bennett Raley on Friday discussed the future of water in Texas as federal, state and individual rights intermingle.

Groundwater in Texas is tied to property rights similar to minerals underneath parcels — the doctrine of absolute ownership, Harden said. Rule of capture is similar to minerals, such as oil, which can be affected by pumping and therefore taken by one landowner from underneath another landowner’s property without recourse.

Ms. Cagle said groundwater rights had been eroding until the Legislature clarified and strengthened laws in recent sessions. Surface water is considered property of the state, which allows use by industry and individuals via permits.

The lack of clarity involves the differing interpretations of state laws by Texas Supreme Court judges and how federal laws, including the Clean Water Act and Endangered Species Act, can affect interpretations, she said.

“The concept that anything has been clarified is befuddling, because Texas property rights laws regarding water are not clear,” Ms. Cagle said.

Raley said every state faces complex cases with regard to ground and surface water rights and how they could affect growth. Future considerations for water supplies could further muddy interpretations.

In Colorado, legislators face clarifying laws and deal with a growing phenomena — rainwater harvesting — which could pose a threat to natural down stream flow and collection of water in the state, Raley said.

Texas’ incredible population growth, robust economy and a possible reassessment of what is the “drought of record,” including possible considerations regarding climate change, will test legislators in the future, Ms. Cagle said. But she doesn’t expect much movement this session.

East Texas has plentiful water, while urban areas, including Dallas/Fort Worth, San Antonio, Austin and Houston, are scrambling to find sources.

The footprint of the Marvin Nichols Reservoir would far exceed the 75,000 flooded acres, because the Clean Water Act requires “mitigation” or that acreage be set aside for natural habitat. In the Marvin Nichols case, mitigation could mean a minimum of 225,000 acres be set aside for habitat.

Harden said the state does have the right to condemn property for “public use” as long as landowners are properly compensated. His only problem with the process is that the state should expect a clash of opinions between regions that want water and those with prospective availability and address it in a straightforward manner with landowners.

“If the state wants to build it, build it, but you have to take care of landowners,” he said.

Region D President Bret McCoy said the planning group never questioned the state’s right of condemnation but rather the viability of Marvin Nichols as a solution to Region C’s needs.

“Just because you have the right doesn’t mean you should abuse it,” he said. “I don’t think they’re looking for a more cost efficient project. It’s a pet project.”

McCoy said the project is decades away. The development board said that despite the reservoir remaining in the 50-year plan, it may never be built.

McCoy said the time might give opportunities for more attention from the public. Pointing out different options, such as conservation efforts or lack thereof, also could build momentum, he said. Austin and San Antonio have outpaced growth in Dallas/Fort Worth but have reduced water consumption in the same period, he said.

“There’s still a lot to work through, and I know there are several legislators who are concerned about the project. Legislation might be presented, but it would face an uphill climb,” he said. “There might be more resistance but (the water development board) has never met much resistance.”